State v. Baize

456 P.3d 770

STATE of Utah, Appellee,

v.Nathan David BAIZE, Appellant.

No. 20180326-CA

Court of Appeals of Utah.

Filed December 12, 2019

Douglas J. Thompson, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Tera J. Peterson, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Nathan David Baize appeals his convictions for violating a protective order. We affirm.

BACKGROUND¹

¶2 Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to "commit, try to commit or threaten to commit any form of violence" against Victim, including "stalking, harassing, threatening, physically hurting, or causing any other form of abuse." Baize was also ordered, "Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly," with the exception that Baize could email Victim about their child, provided his communications were "civil in nature."

¶3 After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim's qualities and character. Baize sent emails to Victim telling her that she was a "spoiled brat," "lazy," "irresponsible," "vindictive," "selfish," "uncooperative," "incapable," "fake," and lacking "integrity." Baize also sent emails to Victim telling her to "[u]se your brain blondie," to "[k]eep it simple stupid, [Victim's name]," and that he was "sick and tired ... of [Victim's] blonde, lazy, messed up approach to cooperation." Additionally, on several occasions, Baize threatened to call the police for "custodial interference charges."

¶4 On another occasion, Baize emailed Victim—with a copy also sent to Victim's new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim's husband spoke to Baize at length and told him that he "need[ed] to stop the belligerent, degrading emails to [Victim]." Baize responded that his emails "will never stop." Furthermore, Baize told Victim that she was "a weak, weak person" because she would "construe [his email comments] as personal attacks."

¶5 The content of Baize's emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be "civil in nature" was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms "harassing," "threatening," and "abuse" in the protective order as "forms of violence or threats of violence." The court denied both motions.

¶6 At trial, Baize stated that while the tone in his emails might indicate that he was "[f]rustrated," "feeling dejected," "[h]elpless, hopeless, [and] concerned," the emails were never uncivil. Rather, Baize asserted that he was just being "honest" and "clear." However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was "weak" for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 The first issue on appeal is whether the restriction in the protective order requiring that Baize's communication with Victim be "civil in nature" rendered the order unconstitutionally vague or acted as a prior restraint on speech. "Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court." State v. MacGuire , 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

¶8 Baize's second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the "legal definitions" of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court's decision on this point for correctness. See State v. Dozah , 2016 UT App 13, ¶ 12, 368 P.3d 863 ("We review a district court's refusal to give a requested jury instruction for correctness.").

ANALYSIS

I. Constitutional Challenges to the Protective Order

¶9 At the outset, we must determine whether Baize is permitted, "in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding." See State v. Hegbloom , 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as "a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order."

¶10 A collateral attack is "where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement." Olsen v. Board of Educ. of Granite School Dist. , 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). "Under the collateral bar doctrine, a party may not challenge a district court's order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court." Iota LLC v. Davco Mgmt. Co. , 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). "With rare exception, when a court with proper jurisdiction enters a final judgment, ... that judgment can only be attacked on direct appeal." State v. Hamilton , 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a protective order's terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom , where we stated that a civil protective order is not subject to collateral attack and that there is "nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so." 2014 UT App 213, ¶¶ 15, 22, 362 P.3d 921 ; see also Olsen , 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota , 2016 UT App 231, ¶ 18, 391 P.3d 239 ("The proper method for contesting an adverse ruling is to appeal it, not to violate it." (quotation simplified)). Courts in other jurisdictions are in accord.²

¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter , 117 Conn.App. 493, 979 A.2d 608, 615 (2009) ("The collateral bar rule has been extended to apply to situations in which ... the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order." (quotation simplified)).

¶13 Here, Baize was ordered not to "commit, try to commit or threaten to commit any form of violence" against Victim, including "stalking, harassing, threatening, physically hurting, or causing any other form of abuse." The relevant portion of the protective order also provided the following prohibition: "Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly," the only exception being that Baize could contact Victim "via email about Child," provided the emails were "civil in nature." Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions—states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order's terms.³

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from "stalking, harassing, threatening, physically hurting, or causing any other form of abuse" to Victim. Baize argues that the trial court...